[2010] FWA 8806 |
|
DECISION |
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Baking Manufacturers Industry Association of Australia
(AM2010/43)
Shop, Distributive and Allied Employees Association
(AM2010/130)
GENERAL RETAIL INDUSTRY AWARD 2010
VICE PRESIDENT WATSON |
SYDNEY, 10 DECEMBER 2010 |
Application to vary the General Retail Industry Award 2010 to remove ambiguity in clauses 23, 29 and 31 - whether ambiguity or uncertainty arises in respect of operation of clauses - whether overtime should extend to casuals - Fair Work Act 2009 ss 157, 160.
Introduction
[1] This decision concerns applications by the Baking Manufacturers’ Industry Association of Australia (BMIAA) and the Shop, Distributive and Allied Employees Association (SDA) to vary the General Retail Industry Award 2010 1(the Award). The variation sought by the BMIAA concerns the ordinary hours of work in clause 27 of the Award. The SDA application concerns overtime in clause 29, meal breaks in clause 31 and payment of wages in clause 23 of the Award.
[2] At the hearing of the matter in Sydney on 1 November 2010 Mr A Duc represented the BMIAA, Mr M Galbraith represented the SDA, Mr T Doyle represented the Australian Federation of Employers and Industries (AFEI), Mr N Tindley represented the National Retail Association (NRA) and Ms M King represented Master Grocers Australia Limited (MGA). Written submissions were received by various parties prior to the hearing of the matter.
The SDA application
[3] The SDA application has been filed pursuant to s 160 of the Fair Work Act 2009 (the Act) to remove an ambiguity in relation to circumstances when overtime is payable, when unpaid meal breaks are taken and when payment should be received.
[4] The following changes are sought:
“29.2 Overtime
Hours worked in excess of the ordinary number of hours of work, outside the span of hours (excluding shiftwork) or roster conditions prescribed in clauses 27 and 28 are to be paid at time and a half for the first three hours and double time thereafter. The rate for overtime on a Sunday is double time, and on a Public Holiday double time and half.
In addition overtime will also be paid for hours in excess of 38 hrs in a week for a casual employee, or in excess of hours prescribed in clause 12.1(a) for a part time employee.
Overtime is calculated on a daily basis”
“(d) No employee can work more than 5 hours without a meal break.”
[5] Some other minor wording changes are sought.
[6] MGA opposes the variations. It submits the SDA has not made out a case for ambiguity associated with any clauses it seeks to vary. It further submits that some of the variations proposed by the SDA may create ambiguity. In respect of overtime, MGA contend that the Award clearly specifies that overtime is to be paid to full-time employees within clause 29 and that clause 12 of the Award contains overtime provisions for part-time employees. It submits that the SDA has not explained an ambiguity in relation the Award that would be remedied by the insertion of a provision specifying that overtime is calculated on a daily basis, nor has an explanation been provided as to how such a provision interacts with current standards. MGA contend that the SDA appear to be motivated by an objective to extend the eligibility of overtime rather than a need for clarity.
[7] In relation to payment of wages MGA submits that the current provision provides adequate security to ensure employees are paid in a timely manner by the requirement that employees be paid on a weekly or fortnightly basis. It submits that the SDA has not made clear where the ambiguity arises in the current clause 23 of the Award.
[8] The BMIAA consents to the proposed variations concerning the calculation of overtime on a daily basis and the payment of overtime penalties when work is performed outside the span of hours. The BMIAA submits that clause 29.1(a) provides “Subject to clause 29.1(b) an employer may require an employee other than a casual to work reasonable overtime...” It submits that there is currently no ambiguity in respect of casual employees and payment for overtime.
[9] The NRA expressed some agreement to aspects of the application but noted the difficulty of the changes in the absence of full agreement on the existence of ambiguity and the proposed means to rectify the matters.
[10] The AFEI does not oppose the proposed variation concerning clause 23, Payment of wages. It submits other than a variation to clarify that overtime is payable for work performed outside the span of hours, the variations proposed concerning clause 29.2 are unnecessary. It submits that changes to clause 31, Meal breaks are unnecessary as there is no ambiguity in the existing clause.
[11] CCIWA submits the meal breaks clause is not ambiguous, and as such the variation proposed by the SDA is unnecessary. It submits the proposed variations concerning overtime, particularly in relation to part-time employees may create further ambiguity, further it objects to the proposal to insert a provision for casual employees to be paid overtime when working in excess of 38 hours in any week. CCIWA do not object to the other variations proposed.
[12] The SDA submits that casual employees received overtime under number of pre-existing instruments. It submits that the BMIAA acceptance that the issue of overtime calculated on a daily or weekly basis is ambiguous and the position that payment of overtime in relation to casuals is not ambiguous is inconsistent.
The BMIAA application
[13] The BMIAA application was filed pursuant to s 158 of the Act. It seeks to extend the commencement of ordinary hours for bakery shops to 5.00 am by amending clause 27.2(b)(i) to include reference to “bakery shops”. The BMIAA submits that if the award is varied in line with certain aspects of the SDA application dealing with calculation of overtime on a daily basis and the payment of overtime for work performed outside of the span of hours the BMIAA application would not be pressed.
Payment of Wages - Clause 23
[14] I do not consider that the SDA has established an ambiguity in relation to the existing provision. The claim is in the nature of an enhancement to the award which does not currently deal with the time of payment of wages. The basis for the application has not been made out.
Overtime - Clause 29
[15] There are five aspects to the changes to clause 29.
[16] The SDA seeks to ensure that the clause creates an entitlement to overtime for casuals who work more than 38 hours. In my view there is no such entitlement in the current provision and the current clause is not ambiguous. In any event I am not persuaded that it would be appropriate to make the change even if there was an ambiguity in the clause.
[17] The proposed reference to overtime payments for part-time employees is intended to reflect the terms of clause 12.7. If the wording is amended to reflect all appropriate clauses, I would be prepared to make the change in order to provide greater clarity on this issue.
[18] The change to the first sentence is intended to make correct references to all clauses specifying ordinary hours so that the circumstances in which overtime is payable is clearer. I agree that the changes are appropriate to resolve a possible ambiguity in the operation of the clause.
[19] The specification of the rate of overtime for Sundays and public holidays assists in the interpretation of clause 29 while not altering the effect of the existing provisions. I agree that the changes are appropriate to resolve an ambiguity.
[20] The inclusion of the final sentence of the proposed clause is also useful in assisting the interpretation and application of the overtime provisions. I agree that the change should be made.
Meal Breaks
[21] The proposed change effectively allows five hour periods of work or shifts to be worked without a break for a meal. The clause could be interpreted as requiring a meal break before the end of the period of work or shift. The change clarifies the operation of the clause and I believe is appropriate to resolve potential ambiguities.
Conclusions
[22] For the above reasons I will make a determination varying the award with respect to the meal break clause and the overtime clause (except in relation to overtime for casuals). 2 Other aspects of the applications are dismissed.
[23] As the variations I will make satisfy the BMIAA concerns, its separate application is dismissed.
VICE PRESIDENT WATSON
Appearances:
A Duc for the Baking Manufacturers’ Industry Association of Australia
M Galbraith for the Shop, Distributive and Allied Employees Association
T Doyle for the Australian Federation of Employers and Industries
N Tindley for the National Retail Association
M King for Master Grocers Australia Limited
Hearing details:
2010.
Sydney
1 November
1 MA000004
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